Archive for the ‘Government’ Category

Nearly two years ago on July 10, 2011, police officers in Henderson and North Las Vegas demanded to use a house as a tactical outpost or command center for a domestic violence investigation of the residents’ neighbors. When the residents appropriately told the police to buzz off, the police battered down the door, shot the occupants with nonlethal bullets, arrested the residents, and commandeered the house. (The charges were eventually dismissed with prejudice.)

Now, the lawyers for the family have brilliantly lain in wait for two years just before the statute of limitations expires* to sue the cities under a host of claims under 42 U.S.C. § 1983 (the federal civil rights statute), notably applying the Third Amendment—the one that prohibits the forcible quartering of soldiers during peacetime—as well as the Fourth Amendment (no unreasonable searches and seizures). Read the complaint here. It is dated July 1, 2013.

Assuming the facts in the complaint as pleaded are true, the plaintiffs deserve blood but will get only money. If the plaintiffs are stalwart enough not to settle (and the cities should absolutely try their hardest to settle), may the jury award them many millions of dollars—as punition for this sort of outlandish, outrageous, malevolent behavior. $100 million sounds about right.

If the government does not settle (assuming the plaintiffs are even willing), and it has the temerity to appeal any judgment, this will be a chance for the appellate attorneys to argue for the incorporation of the Third Amendment against the states—at least in the states inside the 9th Circuit.

Not all of the Bill of Rights apply against the states. (Until the early 20th century, none of the first ten amendments to the U.S. Constitution applied to state governments. See Gitlow v. New York, 268 U.S. 652 (1925), which applied some of the limitations on government in the First Amendment to the states using language in the Fourteenth Amendment.) Most of the Bill of Rights has been incorporated to/against the states. The Third Amendment has not, except in the 2d Circuit (Connecticut, New York, Vermont), because of that Circuit’s holding in Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).

Admittedly, the Third Amendment, which reads,

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law,

contemplates soldiers not police officers, per se. There are also comparative factual issues in the Englbom case that make Englbom harder to serve as an analogy, particularly that the governmental agents were National Guardsmen under the control of the Governor of New York. But without having done much historical research in this area, I’m sure I could come up with a novel but convincing argument to conflate the two concepts (soliders and police).

In any case, the Mitchell family deserves to heap opprobrium upon the cities of Henderson and North Las Vegas and I hope they pay the family handsomely for their actions. Every man’s home should be safe from random governmental force.

* There is no federal statute of limitations for § 1983 claims, so they track the personal injury statutes in the states underlying the federal jurisdictions where the federal courts sit. Nevada’s relevant statute appears to limit these actions to 2 years from the incident.

I decided to start watching Terra Nova today on hulu+ and saw the first episode this evening.

Spoiler: The show first introduces a couple with three children living in a dystopian future 200 years from now. There is a cutscene that shows the Earth from the moon (cf. Earthrise), but instead of a picture of the cerulean verdant world we live on now, we see a sandy desert wasteland from space (cf. Dune). Pollution, over-population, and habitat destruction&#8212the liberal trifecta of red herrings that supposedly will lead to our doom (but a workable plot device)&#8212have made the Earth almost uninhabitable. People generally have to wear breathing masks and society is governed by a security state.

It becomes apparent that having more than two children is illegal because of Malthusian policies put into place by the fascist government. Upon a warrantless search, the police discover the third child that the couple tries to hide. The father, fearing that she will be taken away from them, attacks the police. They subdue him, and the criminal enforcement system sends him to a long maximum security prison sentence. Apparently hitting a cop and having a third child are maximum offenses. It is poetically notable, also, that there is no depiction of a trial.

Fast forward some years, and his wife comes to visit him in prison. We learn that society has found a way to overcome the problems plaguing Earth, by sending pilgrims through a one-way time fracture 85 million years into Earth’s prehistoric past&#8212a place of environmental perfection and hope (sunshine and breathable air). The wife is a well-educated well-trained highly sought doctor. She informs her husband that she has been recruited to this prehistoric colony, Terra Nova, and that their first two children are allowed to go but that she can’t take the third child, since that would be “rewarding illegal behavior.” Obviously her husband is prohibited from going. She has already, however, hatched a plan to abscond with her husband and smuggle their daughter so they can live in the past as a family. Through a bit of hidden planning and a small portable plasma cutter, the father/husband escapes, is almost outed near the time-portal to the past, and as his family is going through the portal, he makes a break for the time gate and throws himself through, ensuring his permanent freedom and his family’s reunification.

They have no way of returning to the dystopia they have always known. And the government has no way of retrieving “stowaways.” Certainly they will face new challenges adjusting to their environment, dinosaurs, life in a small colony that survives with advanced technology, and a new micro-culture. But, the day they arrive into this new world, the wife asks her husband whether they have “made the right decision?”

I was floored. She successfully reunited her family, ensured that the terrible government that was oppressing their ability to freely choose how to create their family (three children) could no longer oppress them, and rescued her husband from a maximum security prison and a lifelong status as a convicted felon for actions that should hardly be considered crimes. It is harder to know what the worst part of 22d century Earth was&#8212the environmental decline or the totalitarian centrally planned security state (I mean, even the people allowed to go through the time fracture were chosen by the government, so it’s evident the government was in maximum control). The former doomed civilization. The latter made the last days of civilization unbearable.

Of course they made the right decision! Clearly this decision is the plot device underpinning the TV show, and the tension caused by the decision to travel in time from the future to the past, and further tensions that will arise over the course of their lives are what will make the story interesting or not. Thus, it is possible the writers were intentionally explaining the crux of the story. But still, doing so directly made the tension too obvious, taking way sophistication the show could have displayed. And, using the vapid question, “Did we make the right decision?” made the show almost incredible.

Truly, they are not quite free, because they arrived into a micro-culture that is run as a top-down command-central tribe, but at least they could leave the gates if they wanted to. They remain in Terra Nova voluntarily, because that society offers them better benefits than slumming it with the dinosaurs, but at least the choice is meaningful, precisely because they can walk outside the gates and never return if they decide that is a better choice. Meanwhile, the family gets to be together. The children grow up with a father. And they are free from the clutches of the security state of the year 2149.

The question, “Did we make the right decision?” may have been more meaningful after a host of episodes in which they suffer and repel constant attacks, deal with disease, plague, and misfortune (I haven’t watched beyond episode 2, so I do not yet know what befalls them). At least at that point, one could understand the question as much as one could identify with the murmuring of the Israelites to return to the Egypt they had known out of fear for the wilds of the desert. When you are beset by the vagaries and tragedies of the wilderness, the temptation to trade its liberty for security becomes a more palpable tension.

But to ask the question so soon after a heroic, exhilarating exodus was not just bad writing, it inexcusably glossed over how terrible the future civilization was. Maybe that’s because we’ve all gotten so used to an increasing number of controls that the show’s writers didn’t even think twice about the absurdity of the comparison.